R v Wright
[2002] VSCA 46
•20 March 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 159 of 2001
| THE QUEEN |
| v. |
| CLARE WRIGHT |
---
JUDGES: | WINNEKE, P., CHARLES and CHERNOV, JJ.A. | |
WHERE HELD: | WANGARATTA | |
DATE OF HEARING: | 20 March 2002 | |
DATE OF JUDGMENT: | 20 March 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 46 | |
---
CRIMINAL LAW - Appeal against sentence - Drug offences - Armed robbery and attempted armed robbery using syringe - Errors by sentencing judge - Whether significant psychological illness justified moderation of deterrence principles - Appellant re-sentenced to lesser head sentence and lesser non-parole period.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan, Q.C. and Mr R. Pirrie | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr L.C. Carter | Pearsons |
WINNEKE, P.:
I will invite Chernov, J.A. to give the first judgment.
CHERNOV, J.A.:
On 19 June 2001, the appellant, who is now aged 33, pleaded guilty in the County Court at Melbourne to two counts of armed robbery and two counts of attempted armed robbery. She admitted one prior court appearance relating to a charge of making a threat to kill and one charge of unlawful assault. The commission of those matters occurred in a domestic context and the appellant was placed on an adjourned bond for 12 months without conviction. After hearing a plea in mitigation made on her behalf in this case, the learned sentencing judge, on 22 June 2001, sentenced the appellant to a total effective sentence of four years' imprisonment and ordered that she serve 30 months before being eligible for parole. His Honour declared that the period of 134 days which the appellant had already spent in custody be taken into account in calculating her ultimate release date.
On 28 June 2001, a judge of this Court granted the appellant leave to appeal against the sentence pursuant to s.582 of the Crimes Act 1958. The appellant appeals on a number of grounds, but it is not necessary to consider all of them, having regard to the view that I have reached that, as Mr Carter for the appellant submitted in his written outline, his Honour erred essentially as is claimed in grounds 2, 3(a) and 7. I note that the Director has also accepted that his Honour so erred. As a result, the appellant falls to be re-sentenced by this Court.
In the circumstances, it is only necessary to set out briefly the events surrounding the offending, and I do so by reference to the useful summary of evidence prepared by the Crown, about which there is no conflict between the parties.
On 9 February 2001, the appellant attended the psychiatric unit of St Vincent's Hospital in the company of her partner, Barry John Wagstaff, and their 21-month-old son. She was affected by heroin and was psychologically unstable. The Department of Community Services had been involved in the care and protection of her son since he was three days old, and on 5 December 2000 the child was removed from the custody of the appellant and temporarily placed in the care of Mr Wagstaff. The evidence before his Honour showed that this had a marked depressive effect on the appellant and, coupled with her intake of heroin, she was in the state to which I have just referred. The appellant had been examined by a psychiatrist at St Vincent's Hospital on the previous day and it had been arranged that she be admitted to the psychiatric ward on 9 February 2001. Upon attending the hospital on that day, the appellant was given medication and was told to wait for further attention. While she waited, under the pretext of going outside to smoke a cigarette, she left the hospital and proceeded to commit the following crimes in rapid succession.
First, armed with a syringe containing a clear fluid, the appellant entered a video store in Gertrude Street, Fitzroy and threatened the attendant, shouting at her to produce money. The attendant, being frightened, backed away. The appellant jumped on to the counter and, continuing to point the syringe at the attendant, opened some drawers and took out a plastic container which held approximately $40. When the appellant was told by the frightened attendant that there was no more money at the store, she left the premises. Shortly thereafter, the appellant hailed a taxi to North Richmond and, during this sojourn, held up the taxi driver by placing a syringe to his neck, shouting at him to produce money. Under a pretext, the taxi driver got out of the cab and ran away, and on his mobile phone called the police. The appellant, finding no money in the taxi, ran down Victoria Parade and turned into a side street and encountered Ms Kathy Tsimbouris, her third victim for the afternoon. Ms Tsimbouris had stopped her car at the side of the road momentarily in order to telephone her husband. She had her two-month-old baby with her in the back seat of the car. The appellant opened the front passenger side door and sat down in the front passenger seat. She told the victim that she had a syringe. She took the cap off a syringe and demanded money. The victim was frightened, but her primary concern was for her baby, because the appellant kept looking around at the child and the victim thought that she might stab her baby in the head if she didn't give the money to the appellant. Crying, the victim asked the appellant many times to get out of the car and when she did so the appellant started to apologise to the victim. Eventually Ms Tsimbouris convinced the appellant that she had some money in the boot of the car. They both got out of the vehicle and went to the boot. Ms Tsimbouris found $15 in her purse and gave it to the appellant, who said she wanted more and that they would have to drive to an automatic teller machine to get money. When told by the victim that she did not have any bank cards with her, the appellant ran off. Finally, almost immediately after the encounter with Ms Tsimbouris, the appellant turned the corner and came upon Mr and Mrs Abramov, who were in the process of unlocking the doors of their Russian Orthodox Church in Oxford Street, Collingwood. Whilst pointing a syringe with a bent needle at them, the appellant demanded money and their wallets. Mr Abramov told the appellant to go away, because his wife was pregnant. He told his wife to run away, which she did. At that point the appellant apologised to Mr Abramov and ran off.
Within a short period of time the appellant was apprehended and arrested by the police. That evening, she was deemed fit by a forensic medical officer to be interviewed by police, in the presence of an independent third person. She made essentially "no comment" responses to questions, saying that she had been in a daze all afternoon and could not remember what she had done.
The appellant was educated to HSC level at a private girls' school in Melbourne and subsequently at Monash University, where she obtained an associate diploma in welfare studies. Her home life was not a happy one. Her parents were strict disciplinarians and, according to her, there was no or little personal warmth between her parents and her. When she was 16 she suffered from anorexia and at 18 she had suicidal tendencies. She had worked as a volunteer in a number of institutions which are concerned with the under-privileged, and in particular, drug users. She herself became a drug addict and when she was approximately 24 years of age she was raped by a man with whom she had a brief relationship. When pregnant with her son the appellant significantly reduced her intake of heroin and by all accounts was happy with her pregnancy. Thereafter, however, she took up the use of heroin and, as I have indicated, got into difficulties with the department in relation to her son and suffered the consequences to which I have referred.
Mr Wagstaff gave evidence on the appellant's behalf on the plea in mitigation. He told the learned sentencing judge that after the child had been taken from the appellant, she responded badly to that situation and that the decline in her physical and mental state was "phenomenal". In the week or two leading to 9 February 2001, the appellant had telephone contact with Mr Wagstaff and it was obvious to him that she was in a distressed state and suicidal. As I have said, she attended St Vincent's Hospital, but was unable to get a bed at that time in the mental health ward and was told to return on 9 February 2001.
There was also evidence before his Honour from, inter alia, the Salvation Army chaplain about the appellant's regret and embarrassment in relation to the offences she had committed and at her distress about being placed into custody. His Honour also heard that the appellant had written letters of apology to the victims. There was also tendered in evidence a report, dated 31 May 2001, of Dr Ruth Vine, a consultant psychiatrist, who stated that the appellant's offending occurred in the context of her suffering progressive depression, escalating heroin use and social dislocation in the preceding months. In Dr Vine's view, it was difficult to separate the effect of drug use on the appellant from the possible presence of an underlying major depressive episode. Dr Vine was of the opinion, however, that at the time of compiling her report the appellant was well advanced in her drug rehabilitation and had developed considerable insight into a number of her problems. A number of character references were also tendered in evidence and a number of the appellant's previous employers from early to mid-1990s, involved in drug and alcohol and AIDS prevention programs, gave character references speaking highly of her work and contribution and describing her as an intelligent, professional and committed person.
His Honour was satisfied that at the time of the offending the appellant was affected by the ingestion of heroin and was psychologically unstable. The judge also accepted that the appellant's problems with her child exacerbated her predisposition to depression, which in turn was further exacerbated by heroin ingestion, to the point where she was seeking treatment at St Vincent's Hospital immediately before the commission of the offence. In sentencing the appellant, his Honour said that he took into account R. v. Tsiaras[1] regarding the operation of the principle of specific deterrence, and he referred to what he said was the reply submission of the Crown that an immediate custodial sentence was appropriate.
[1][1996] 1 V.R. 398.
I turn to his Honour's three relevant errors. First, the judge wrongly sentenced the appellant on the basis that she used a filled syringe in the commission of each of the four offences. His Honour regarded this as an aggravating factor for sentencing purposes. It is clear, however, that his Honour erred in that regard because, on the evidence, it was not open to him to find beyond reasonable doubt that the last three offences were committed by the appellant using a filled syringe. Thus, his Honour proceeded to sentence the appellant on a false premise. No doubt the victims were unable to discern whether the syringe was filled or not, but it was a matter that would have been relevant to the appellant's moral culpability for the offences. Consequently, the error was a material one.
Secondly, although it seems from the context in which his Honour referred to R. v. Tsiaras, as I have already mentioned, that he took the appellant's unstable psychological condition into account in relation to the operation of the principle of specific deterrence, he did not do so in respect of general deterrence. In assessing the criminality of the offending, his Honour concluded that: "These are particularly serious and prevalent crimes and principles of general deterrence are of paramount importance." When, however, a crime is committed impulsively, as it was here, and the evidence demonstrates a clear and direct relationship between the crime and the offender's serious psychiatric illness or disorder, those circumstances ordinarily justify a sensible moderation of the principles of specific and general deterrence when imposing sentence: R. v. Felsinger[2]; see also Tsiaras[3] and R. v. Marshall[4]. In this particular case, as I have said, the evidence which was accepted by the judge showed that the appellant suffered from a significant psychological illness at the relevant time, and this was directly related to her impulsive offending. In those circumstances, the acts of the appellant did not provide a suitable vehicle for general deterrence and therefore this principle had little or no role to play in the sentencing process. His Honour's failure to recognise this bespoke error on his part.
[2][2001] VSCA 154.
[3]Fn. 1.
[4][2000] VSCA 167.
Thirdly, his Honour wrongly assumed that the Crown's submission on penalty was that an immediate custodial sentence was appropriate. Although a submission by the Crown on this issue was obviously not binding on his Honour (R. v. Cardona[5]), it is apparent that he had regard to it when considering the appropriateness of the sentence to be imposed on the appellant. In doing so, however, the learned sentencing judge proceeded on a false premise because the transcript of the Crown's submission makes it plain that the prosecutor submitted that, although the term of imprisonment was the only appropriate sentence, "what form that custodial sentence takes is a matter for you". Thus, contrary to his Honour's assumption, the Crown did not submit that an immediate custodial sentence was the only appropriate sentencing disposition.
[5][1998] 2 V.R. 126.
Given these errors, his Honour's sentencing discretion miscarried and, as I have said, the appellant falls to be re-sentenced by this Court. In my view, having regard to the circumstances of the offending and of the offender, and in particular in order to reflect the appellant's prospects of rehabilitation, the appellant should be re-sentenced as follows: on count 1, armed robbery - two years and six months' imprisonment; on count 2, attempted robbery - two years and six months' imprisonment; on count 3, armed robbery - three years' imprisonment, on count 4, attempted armed robbery - one year imprisonment. I propose that three months on each of counts 1 and 2 be cumulated upon the sentence on count 3 and upon each other, making a total, as I calculate it, of three years and six months' imprisonment.
Mr Carter, who appeared for the appellant, submitted as his primary submission that the remainder of the sentence be suspended, but in my view it would be more appropriate if the appellant was released under supervision. I therefore declare that the appellant should spend 13 months and two weeks' imprisonment before becoming eligible for parole. On my calculations, the appellant has already served in the order of 403 days' imprisonment and will therefore be eligible for parole very shortly. I note that the Director of Public Prosecutions is in broad agreement with this aspect of the proposed sentencing disposition. Consequently, subject to any arithmetic corrections that may be required to my calculations, I would propose that the usual declaration be made on the above basis.
WINNEKE, P.:
I agree, for the reasons given by Chernov, J.A., that this appeal should be allowed, and I agree in the orders which his Honour proposes.
CHARLES, J.A.:
I also agree.
WINNEKE, P.:
The formal orders of the Court will be as follows:
The appeal is allowed. The sentences imposed by the court below are set aside and in lieu thereof this Court imposes the following sentences:
on count 1 - 2 years and 6 months' imprisonment';
on count 2 - 2 years and 6 months' imprisonment;
on count 3 - 3 years' imprisonment;
on count 4 - 1 year imprisonment.
We direct that 3 months of the sentence imposed on count 1 and 3 months of the sentence imposed on count 2 be cumulated upon each other and upon the sentence imposed on count 3. The total effective sentence is therefore one of 3 years and 6 months. We order that the appellant serve a minimum period of 13 months and 14 days before becoming eligible for parole.
We declare pursuant to s.18 of the Sentencing Act 1991 that the appellant has served 405 days of the sentences which we have imposed. We direct that that declaration and its details be entered in the records of the Court.
We note that the effect and intent of the orders made by us will be that the appellant will become almost immediately eligible for consideration by the Parole Board for release.
Ms Wright, do you understand what we have said?
APPELLANT: Yes, I do, Your Honour.
WINNEKE, P.: It will be necessary for you to go back to custody to await the intervention of the Adult Parole Board, who will consider and no doubt recommend your release into the community as quickly as possible, subject to their supervision, and we simply say to you that when you are released, don't let us down. All right?
APPELLANT: Yes.
0